GROUND
FIFTEEN: INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL
A. Defense Counsel Failed Understand The Most Critical Issues
1. The Time
Of Chapel’s Departure From Fire 14
The most critical issue that the
prosecution faced was timing. After Chapel’s arrest, information from the
firefighters at Firehouse 14 established that Chapel had been at the firehouse
from about 8:30 to about 10 PM. Even GCPD Sgt. Stone’s original statement
established a 10 PM departure time for Chapel. Chapel himself established a
departure time of just prior to 10 PM, relating his departure to a call he
received directing him to the Arden Drive address at 9:57. The prosecution’s
task therefore was to establish a departure time early enough for Chapel to
have driven to Gwinnco Muffler, intercepted the victim, murdered her and then
answered the Arden Drive call. The time they selected was sometime before 9:30
PM.
[Porter,
Trial, Page 6664, Line 2]
And how much
time does he have to do it? He arrives
by nine-thirty. The shots happen at
about nine-forty. By nine forty-five
Karl Kautter and Paul Omodt and Allen Robertson are driving by, and they're not
seeing a traffic stop. They're seeing
the cleanup on a murder scene, because Michael Chapel has already killed
Emogene Thompson by nine forty-five.
2. The Time Of The Blue Light Activity In The Gwinnco Muffler Driveway
Driver witnesses passing Gwinnco
Muffler established that the mystery police car in the driveway was a different
model than the one Chapel was driving[1]
and was there at least by 8:45 PM[2]
and was last seen in the driveway before the blue light activity at 9:30 PM[3].
The victim’s car was then seen alone in the driveway between 9:55 and 10 PM
which was consistent with her departure from her home at 9:50 PM[4].
The prosecution then produced
witnesses that specified that they passed Gwinnco Muffler at approximately 9:45
and saw blue light activity and an officer in the driveway; however, in every
case, that testimony was impeached by the remainder of their testimony or by
previously given testimony, and again in every case the time of their passing
Gwinnco Muffler would have been at approximately 10 PM or later[5].
The defense counsel did not
recognize the critical nature of the timing that night is prima facie evidence
of ineffective assistance if not incompetence.
B. Defense Counsel Failed To Carefully Examine Crime Scene And Autopsy
Data
If defense counsel had carefully
reviewed the crime scene report and photographs and the autopsy report, they
would have seen that the prosecution’s theory of what happened in the Gwinnco
Muffler driveway that night was pure nonsense[6].
C. Defense Counsel Failed To Challenge Prosecution On State’s Exhibit
12
The defense failed to see the
importance of State’s Exhibit 12, a photograph showing high velocity blood
spatter on the front windshield of the victim’s automobile, and allowed the
prosecution to admit that photograph without its being shown to the jury, even
when a member of the jury requested that it be published[7].
D. Defense Counsel Failed To Interview Defendant’s Alibi Witnesses
None of Chapel’s alibi witnesses
were ever interviewed by the defense. Thanks to their captain, several of the
firefighters did make statements about Chapel’s presence at the fire station
that night, but several other witnesses who could have established Chapel’s
presence at his gym on the way to the Arden Drive call were never contacted by
the defense. After the trial before the jury began, one of these witnesses, Van
Parker, was interviewed by the police before his testimony, and all the witness
would say on the stand is that after two and one-half years, he could not
remember the circumstances of that night.
E. Defense Counsel Failed To Call Crucial Witnesses
1. The Time The Victim Left Her Home For Work.
Amy Parker, a neighbor of the
victim, made a statement to police just after the murder that the victim left
her trailer home for work at her usual time, 9:50 PM[8].
Ms. Parker also indicated that her boyfriend, Keith Seay, was with her in their
trailer when she made that observation. Ms. Parker was never called to testify.
Keith
Seay made no statement to the police. His statement to Dennis Miller, a defense
investigator, corroborated Amy Parker’s statement[9].
He was never called to testify by the defense[10].
2. Contamination Of Raincoat By The Georgia State
Crime Lab.
Several witnesses were present at
the Georgia Bureau of Investigation Crime Lab when Chapel’s raincoat was
hopelessly contaminated with the victim’s blood[11].
None of these witnesses were ever called to testify by the defense. According
to post-trial statements by the jurors, Chapel’s raincoat was a pivotal piece
of evidence.
F. Jury Visit To The Crime Scene
Only one of Chapel’s jurors was from
the Buford-Sugar Hill area, and that juror was an alternate. A visit to the
crime scene would have been very instructive as to distances and timing that
were critical to the defense[12].
G. Defense Counsel Failed To Introduce Expert Testimony
1. Bullet Trajectory And Blood Spatter Analysis.
Dennis Miller, the defense
investigator recommended to defense counsels Moore and Rogan that a bullet
trajectory study be performed. This suggestion was ignored.
[Dennis
Miller, New Trial, Page 46, Line 1]
By Mr.
Mott
Q. Now let’s go back to the crime scene.
Did you discuss the retention of various experts with Mr. Moore and Ms. Rogan?
A. Yes.
Q. Were there expert lines of inquiry you
discussed for no expert being retained?
A Probably the only one that comes to
mind would be the – I think I suggested at one point that we retain someone to
try to do a computer re-enactment or to try to chart the trajectory of the bullets.
Q. And how about blood splatter, was that
part of that trajectory? Did you feel somebody should look at the –
A. Oh yeah, definitely. And I think the
gentleman that we did speak to about blood spatter was Rees Smith. But as far
as I know, I never saw any kind of official report or was involved in any
meetings where he gave any kind of an opinion.
Reese Smith, an attorney and former
head of the GBI Crime Lab, was engaged by the defense. He was present at the
GBI Crime Lab at the time that Chapel’s raincoat was contaminated by the
victim’s blood in March 1995, but the defense did not follow through with this
expert and did not introduce any expert reports or call this witness to
testify.
2. Police Patrol Car Capability Analysis by Herman Hill
Herman Hill, a Department of
Transportation engineer, was also asked to prepare a study based on the
witnesses’ statements. Mr. Hill’s conclusions[13]
were never introduced into the trial nor was he called to testify, even though
Mr. Moore referred to this study during the trial.
[Mr. Moore, Trial, Page 5438, Line 18]
MR. MOORE: Well, I have an engineer, Your Honor, who is going to testify,
based on the performance of that vehicle, about times and distances and
everything. I've got a witness from
Michigan that we can fly in. It's
probably going to cost about a thousand dollars to do it, but I mean he's
standing by to come in if necessary.
During
the defense phase of the trial, Mr. Hill was in the witness room prepared to
testify when defense counsel Johnny Moore entered the room and told Hill that
the prosecution witnesses upon whom Hill had based his calculations had changed
their testimony from their original statements. Mr. Moore said that based upon
this, Mr. Hill’s testimony study and testimony was outdated and would not be
used by the defense[14].
What
is important here is that the prosecution witnesses involved, Paul Omodt and
Karl Kautter had testified for the prosecution almost two weeks before the
witness room incident, and had the defense given this information to Mr. Hill
just after they testified, Mr. Hill would have had more than sufficient time to
prepare a new study that, in many ways, would have been more defense friendly.
H. Defense Counsel’s Attention Is Not On Trial Testimony
It
is apparent that the defense counsels had no idea of the importance of the
crime scene to Chapel’s defense. They did not object to Prosecutor Smeal’s
bamboozling of the jury with Technician Judy Grahams testimony regarding the
crime scene photographs[15].
[Judy Graham, Trial, Page 3247, Line 13]
By Prosecutor Smeal
MR. SMEAL: Your Honor, at this time, the state would ask permission to
publish these to the jury and rather than passing them around, if I could just
be permitted to hold them up for the jury sequentially.
THE COURT: Any objection, Mr. Moore?
MS. ROGAN: We have no objection, Your Honor.
THE COURT: Go ahead, please.
Just
as Prosecutor Smeal was presenting a photograph that was misidentified by
Technician Graham during her testimony, defense counsel was more worried about
the cameras in the courtroom than in defending his client, and they allowed
critical and misleading testimony to influence that jury. It was well that a
juror corrected Prosecutor Smeal and the testimony of Witness Graham[16],
but the damage to the jury had already been done.
[Presenting to the jury]
[Judy Graham, Trial, Page 3248, Line 8]
By Prosecutor Smeal
MR. SMEAL: The next photograph is State's Exhibit 17.
[Presenting to the jury]
JUROR:
Passenger side door?
MR. SMEAL: This was identified as the passenger side door.
THE COURT: You're just stating the Exhibit Number, Mr. Smeal.
MR. SMEAL: That was State's Exhibit 17.
The next photograph is State's Exhibit 18.
[Presenting to the jury]
MR. MOORE: Your Honor, one thing, I noticed the cameras over here. I hope the camera's not getting the jury
with Mr. Smeal being so close.
THE COURT: Yes, sir. I hope not as
well.
I. Defense Counsel Introduced Prejudicial
Information
Through
his habit of asking open-ended questions, Defense Counsel Moore allowed the
jury to hear the basest kind of hearsay evidence that was extremely prejudicial
to the defendant. While questioning then Capt. Ronald Davis, Mr. Moore allowed
in statements that could only hurt Chapel in the minds of the jurors.
[Ronald Davis, Trial, Page 4286, Line 20]
By Mr. Moore
Q. Now,
Captain Davis, did you ever have occasion to work on any other case that you
had reason to believe was related to this case at a later time?
A. Can
you be a little bit more specific?
Q. Well,
I don't know which you may have worked on.
I had received some information, I don't know if it's correct or not,
and I'm just trying to determine from you whether or not you worked on a
subsequent case where you had reason to believe there might be some evidence
connected to this case.
A. In
following up, yes, I worked on some more cases that we felt that Mike Chapel
was a suspect in some other cases.
Q. Okay. I'm not talking about Mike Chapel. I'm talking about any other cases other than
that, connected to the case, involving other people that you investigated?
A. All
right. All those cases, the reason that
we were doing it was because Mike Chapel was a suspect in those cases, and we
were working on it. Is that what
you're talking about?
[Here Johnny Moore was attemting to get Capt. Davis to talk about
two cases: the so-called “Murder of the Russian” and “The Armored Car Robbery”.
Chapel had absolutely nothing to do with either case; but they were unsolved,
and the police were trying to establish a relationship in order to somehow
strengthen this murder case against him.
THERE WAS NO ONE TO OBJECT.
[12] See Photo Exhibit P-06, Peachtree Industrial Boulevard Going North, for the type of information such a visit would have furnished to the jury
[14] See Document Exhibit 15-01, Declaration of Herman Hill
